Pharmacist with Cerebral Palsy Sues for Job Discrimination

Larry M. Simonsmeier, JD, RPh

Published Online: Tuesday, October 1, 2002

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Issue of the Case: A federal court in Colorado was asked, in this month?s case, whether the refusal to hire a pharmacist with cerebral palsy was employment discrimination under the Americans with Disabilities Act (ADA).

Facts of the Case:Jane Doe is a licensed pharmacist who has had cerebral palsy since birth. Upon graduating from pharmacy school, she worked for a number of public and private hospitals. When Doe moved to Denver, she applied to the defendant retail pharmacy to work as a part-time pharmacist. After an interview, she was notified that she would not be hired because the defendant ?could not accommodate her handicap.?

Cerebral palsy causes a lack of coordination, a scissors gait, and difficulty with rapid or fine movements. Doe testified that, although these restrictions place many concrete limitations on her activities, the most significant restriction is that actions that would come naturally to a person without cerebral palsy require focus, effort, and calculation.

In her interview with the defendant, Doe explained that she may not be as fast as some pharmacists in dispensing prescriptions, but she added that in her previous jobs she had learned to quickly dispense intravenous (IV) medications. Doe contends that at no time during the interview did she state that she could not work alone, nor did she request any special accommodations. The defendants argue that Doe allegedly stated that she assumed that, if any patients had difficulty understanding her, there would always be someone else in the pharmacy to assist her.

The Court?s Ruling:The court did not dismiss the case because there were sufficient questions of fact as to whether the defendant ?regarded? Doe as disabled, in violation of the ADA.

The Court?s Reasoning:The ADA prohibits discrimination against a qualified individual with a disability. A qualified individual is a person who, with or without reasonable accommodation, can perform the essential functions of the job. Disability under the law is defined as a physical or mental impairment that substantially limits 1 or more of the major life activities of the individual.

The parties did not dispute that Doe suffered from a physical impairment. Further, it was agreed that walking, speaking, and performing manual tasks are major life activities. The disagreement in this case centered on whether the impairment substantially limited these major life activities.

Plaintiffs must clear a high hurdle to establish a disability for purposes of the ADA. The fact that a person with an impairment performs her life activities ?differently? than the rest of the population will not suffice to establish disability. Instead, a disability is measured on a case-by-case basis and not upon the diagnosis or the name of the impairment, but rather on the effect the impairment has on the life of the individual.

The evidence showed that Doe does not use any aid to walk and does not wear specialty shoes. When working at the hospital, she climbed the stairs because it was faster than using the elevator. Doe is the mother of 3 boys. She cleans her house, cooks, and shops for groceries. Likewise, the fact that Doe sounds different from most people when talking does not mean that she is substantially limited in the major life activity of talking. As a hospital pharmacist, she communicated accurately and confidently and on 1 occasion addressed the representatives of a national pharmacy meeting. As to manual tasks, Doe drives her own car, types on the computer, and?perhaps most impressive in the court?s opinion?followed complex procedures in making IV bags. The court found Doe to be a commendable example of a person who has succeeded in accommodating her impairment to achieve many successes in both her personal and professional life. Under the law, a person must be significantly limited in the ability to perform an activity, compared with an average person in the general population. Doe failed to show any such restriction. Instead, to her credit, she defied restrictions in her daily life.

The question still remained, however, whether she was ?regarded as having a disability,? which, under the ADA, is included in the definition of a disability. Congress acknowledged, in adopting the law, that society?s myths and fears about disability and disease are as handicapping as the physical limitations. Employers may not entertain misperceptions that a person has substantially limiting impairments when, in fact, the impairment is not so limiting.

Doe argued that the pharmacy ?regarded? her as having a disability. The defendant admitted being aware of her impairment but contended that the mere fact of awareness was insufficient to demonstrate that it regarded her as disabled.

The pharmacy offered legitimate, non-discriminatory reasons for its employment decision. Those reasons included Doe?s alleged lack of speed in filling prescriptions, her alleged concern about her ability to communicate with customers, and her assumption that there would always be another person on duty with her. Doe retorted by offering to demonstrate her pill-counting skill to show her speed. She was also able to show that the pharmacy had other pharmacists who were very slow in dispensing or who had heavy foreign accents and were difficult to understand.

The court ruled that the pharmacy?s motion for summary judgment should be denied because of the issue of whether the pharmacy regarded Doe?s cerebral palsy as substantially limiting 1 of her major life activities. This issue arose when the pharmacy indicated its concern about Doe?s ability to communicate with customers and its statement that it ?could not accommodate her handicap.? The case was set for trial.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.